Moussa v. Holder et al

Filing 21

MEMORANDUM re dfts' MOTION for Summary Judgment 18 filed by Evangelia A. Klapakis, Alejandro Mayorkas, Eric H. Holder, Jr., Janet Napolitano (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 05/13/14. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
MAMANE SANI MOUSSA,
Plaintiff
v.
ERIC H. HOLDER, JR., et al.,
Defendants

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: CIVIL NO. 1:13-CV-586
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MEMORANDUM

I.

Introduction
On March 1, 2013, Plaintiff Mamane Sani Moussa filed a complaint (Doc. 1)

seeking de novo review of his naturalization application, which had been denied by the
U.S. Citizenship and Immigration Services (“USCIS”) on August 9, 2011. Moussa, a
citizen of Niger, is a Civil Affairs Officer for the United Nations. On March 12, 2014,
Defendants filed a motion for summary judgment and a supporting brief. (Docs. 18, 19).
Plaintiff has not filed a timely opposition to the motion.1 Although the motion is
unopposed, we will conduct a merits analysis. See Stackhouse v. Mazurkiewicz, 951
F.2d 29, 30 (3d Cir. 1991) (explaining that district courts should conduct a merits analysis
before granting an unopposed motion to dismiss). Because we find that no dispute of

1. Pursuant to Local Rule 7.6, a party opposing a motion for summary judgment has 21
days to file a brief in opposition to the motion. The motion was filed approximately sixty
days ago, and Plaintiff has not filed an opposition.

fact remains, and that Moussa’s application was properly denied, we will grant summary
judgment in favor of Defendants.
II.

Background
Moussa began employment as an intern at the UN on January 10, 2005,

and became a Civil Affairs Officer on April 24, 2006. (Doc. 18-1 at 1). He became a
permanent resident of the United States on the same date. (Doc. 18-3 at 18). On
February 9, 2011, Moussa filed an application for Naturalization (known as an “N-400").
(Doc. 18-1 at 1). The application required that Moussa provide information about his
travel outside the United States from 2006 through 2011. (Doc. 18-3 at 18-19). On his
application, Moussa listed four trips that totaled 435 days. (Doc. 18-1 at 1). During an
interview with the USCIS on May 23, 2011, Moussa added two more foreign trips,
totaling 80 days. (Doc. 18-1 at 2). Because USCIS agency records indicated that
Moussa had taken fourteen additional trips that he failed to disclose on his application,
the agency requested more information about his travel between 2005 and 2010. (Doc.
18-1 at 2). This time, Moussa provided a list of international trips that totaled 1,338 days.
(Doc. 18-1 at 2). The USCIS rejected Moussa’s application on the basis that he had not
been physically present in the United States for the required period of time. (Doc. 18-1
at 2). On August 9, 2011, Moussa filed a request for a hearing on his application, which
was denied. (Doc. 18-1 at 3). On March 1, 2013, Moussa filed the instant complaint
seeking de novo review of the denial of his application. (Doc. 1).

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III.

Discussion
A. Standard of Review
We review denials of applications for naturalization de novo. See 8 U.S.C.

§ 1421(c). Under this standard, we must make our own findings of fact and conclusions
of law. Abulkhair v. Bush, 413 F. App’x 502, 507-08 (3d Cir. 2011). Summary judgment
is appropriate when there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. Lawrence v. City of Philadelphia, 527 F.3d 299,
310 (3d. Cir. 2008). We “must view all evidence and draw all inferences in the light most
favorable to the non-moving party,” and we will only grant the motion “if no reasonable
juror could find for the non-movant.” Id. If the moving party demonstrates that no
genuine issue of material fact exists, the burden shifts to the nonmoving party to present
evidence of a genuine issue for trial. Josey v. John R. Hollingsworth Corp., 996 F.2d
632, 637 (3d Cir. 1993). “Material facts are those ‘that could affect the outcome’ of the
proceeding, and ‘a dispute about a material fact is genuine if the evidence is sufficient to
permit a reasonable jury to return a verdict for the nonmoving party.’” Roth v. Norfalco,
651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v. New Jersey, 637 F.3d 177, 181 (3d
Cir. 2011)).
B. Moussa’s Application Was Properly Denied
Pursuant to 8 U.S.C. § 1427, a lawful permanent resident applying for
naturalization must meet three requirements: continuous residence, physical presence,

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and good moral character. See 8 U.S.C. § 1427(a), (c), (e). The sole issue in this case
is whether Moussa has satisfied the “physical presence” requirement. According to the
statute,
No person, except as otherwise provided in this subchapter,
shall be naturalized unless such applicant, . . . immediately
preceding the date of filing of his application for naturalization
has resided continuously, after being lawfully admitted for
permanent residence, within the United States for at least five
years and during the five years immediately preceding the date
of filing of his application has been physically present therein
for periods totaling at least half of that time, . . . .
8 U.S.C. § 1427(a) (emphasis added). Thus, an individual seeking
naturalization must continuously reside and be physically present in the United States
for at least thirty months, or 913 days, of the five years prior to the date of his
application. Moussa admits that he was not physically present in the country for the
required number of days preceding his application. However, he claims that he is
statutorily exempt from the physical presence requirement.
The first exemption that Moussa cites is found in § 1427(c). This section
excuses individuals employed by the United States government from the physical
presence requirement. See 8 U.S.C. § 1427(c). Because Moussa is employed by the
UN, not the United States government, this section does not apply to him.
Next, Moussa claims that the exemption found in § 1427(b) excuses his
travel. This provision exempts employees of public international organizations–such as
the UN–from the continuous residence requirement. It provides: “Absence from the
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United States for a continuous period of one year or more during the period for which
continuous residence is required . . . shall break the continuity of such residence, . . . .”
(emphasis added). The continuous residence and physical presence requirements are
separate elements of the naturalization process that must both be satisfied. See
Abulkhair, 413 F. App’x at 508. Thus, while § 1427(b) may excuse Moussa’s travel for
the purposes of the continuous residence requirement, it does not extend to the physical
presence requirement.
Last, Moussa argues that § 1430(c) applies to him. This section provides
an exemption for employees of bona fide non-profit organizations incorporated in the
United States. See 8 U.S.C. § 1430(c). Because the UN is an international organization
that is not incorporated in the United States, this argument is unavailing. The exemption
does not apply to Moussa.
It is undisputed that Moussa has not been physically present in the United
States for the required number of days. It is also clear that Moussa is not exempt from
the physical presence requirement. Accordingly, we find that the USCIS properly denied
his application for naturalization. Defendants are entitled to judgment as a matter of law.

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V.

Conclusion

For the foregoing reasons, we find that Defendants are entitled to summary
judgment. An appropriate order will follow.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

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